A fresh start for the justice system

November/December 2008

President-elect Barack Obama’s plate is piled high with issues: the economy; wars in Iraq and Afghanistan; health care. A cursory review of the nation’s most pressing problems might lead one to conclude that the health of America’s courts is well down the list until one appreciates the critical role that courts play in grappling with every major issue of the day. As the nation’s economic crisis deepens, courts must oversee bankruptcies, mortgage foreclosures, defaulted loans, and labor disputes. In the wake of war, courts must adjudicate cases concerning detainee rights, the propriety of military tribunals, government contracts, and veterans’ benefits. And health care woes engender insurance litigation, suits over unpaid medical bills, and health plan coverage. Viewed in that light, the well-being of the nation’s courts is inextricably linked to the well-being of the nation itself.

The new administration has ascended to power with the promise of change. One change of critical importance is to restore traditional respect for the judiciary and the rule of law. The nation’s courts have recently endured an acrimonious cycle of attacks, led by slogan-wielding politicians and pundits who have decried “judicial activism” and proposed that judges who rule in disfavored ways be punished with impeachment, cuts to their budgets or jurisdiction, or defeat at the ballot box. Indifferent and sometimes hostile legislatures have withheld resources for courts and cost of living adjustments for judges, while mayors and governors from both political parties have sought votes by scoring points at the judiciary’s expense.

President-elect and Mrs. Obama are both able lawyers, and as such appreciate the importance of the rule of law and the role of judges in American government. As President and First Lady, they have a unique opportunity to lead by example, to underscore the importance of an effective system of administering justice, and to promote public confidence in that system. To those ends, there are several steps that we urge the new administration to take:

• As an initial matter, we fully anticipate that the new administration will take a more restrained and less partisan approach to its oversight of, and key appointments to, the Justice Department.

• In a related vein, we urge the new administration to exercise leadership in restoring a less partisan and acrimonious relationship with the judiciary. Criticism of judicial decisions is healthy and inevitable, but disagreement can be expressed without challenging the legitimacy of the judiciary as a coequal branch of government or threatening to retaliate against the authors of decisions that the President and others do not like. This kind of leadership need not take the form of lengthy speeches, full-blown initiatives, or executive orders. It can be as simple as the tone the President sets in speeches, press conferences, interviews, and other public appearances that convey the administration’s respect for the judiciary’s authority and appreciation of the role that fair and impartial judges play in upholding and applying the rule of law.

• We likewise urge the President to make plain by word and actions that basic access to courts and counsel, and due process of law are principles at the core of our system of justice that must not be forsaken, even in times of war.

• Ours is a federal system in which 97 percent of the nation’s cases are adjudicated by state courts. While President Obama will have an obvious interest in the operation of the federal courts, the effective administration of justice in the United States depends on the continued health of our state courts and on promoting comity between the state and federal systems. We therefore urge the President to support the ongoing work of the State Justice Institute, which serves a critical role in promoting innovative administration of state courts that redounds to the benefit of state and federal systems alike.

• It is in America’s interest to promote the rule of law not just in the United States, but around the globe. To that end, we encourage President Obama to lend his support to rule of law initiatives undertaken by the United States Agency for International Development, the State Department, and bar associations and nongovernmental organizations worldwide.

These recommendations are general in scope. They are intended to be tone-setters for a new administration that is poised to make important changes on several fronts. President-elect Obama campaigned on a promise to reach across the political aisle in an effort to narrow the debilitating partisan divide—a divide that has adversely affected not just the political branches but the judiciary as well. We welcome the new administration’s spirit of bi-partisanship and the fresh start it portends for the judiciary’s relationship with Congress and the President, and for the future of America’s courts.